For decades in Oklahoma, property owners facing lawsuits for injuries caused by tenants’ dogs often relied on a “not my dog” defense. If the dog was not legally theirs, they asserted that they bore no liability. However, recent decisions and evolving municipal ordinances have narrowed that defense. Courts and cities are increasingly holding property owners accountable when they allow dangerous or aggressive dogs to reside on their premises, even if those dogs are owned by tenants. This article highlights the most significant case law and ordinances that shift the liability landscape. It also offers practical guidance for attorneys advising property owners on how to mitigate risk and prevent avoidable harm to others.

STRICT LIABILITY UNDER 4 O.S. §42.1

The starting point for any discussion of Oklahoma’s approach to liability for a victim’s injuries or death from an unprovoked attack is the strict liability standard implemented through 4 O.S. §42.1. Under this statute, “The owner or owners of any dog shall be liable for damages to the full amount of any damages sustained when his dog, without provocation, bites or injures any person while such person is in or on a place where he has a lawful right to be.” For 4 O.S. §42.1 to apply, the first element that must be evaluated is who can be considered the owner(s) of the subject dog. This issue has been debated in numerous cases, and not surprisingly, many property owners have asserted “not my dog” in defense of negligence and negligence per se claims asserted by plaintiffs after attacks committed by tenants’ dogs.

For many years, property owners avoided liability for injuries caused by tenants’ dogs through appellate opinions that mostly resolved disputes involving absentee landlords who asserted a lack of ownership or knowledge of such dogs living on their properties.[1] Whenever property owners faced liability for such injuries, they asserted a “not my dog” defense regardless of whether they were an absentee landlord or had knowledge of the dogs that attacked without provocation.

CASE STUDY: HAMPTON V. HAMMONS

In Hampton by and Through Hampton v. Hammons, a young boy sustained serious injuries from being mauled by a pit bull that lived at the property owner’s home in Tulsa.[2] The injured boy lived next door to the defendant’s property, and his parents sued under various grounds, including negligence and negligence per se. The defendant allowed two pit bulls owned by his adult children to live at his property, but he disputed any liability for the attack based on his lack of ownership of the dogs.

The parents' negligence allegations included claims of failing to properly maintain the fence between the properties and keeping the pit bulls on chains designed to keep them in close proximity to each other while prohibiting their contact (known for making such dogs aggressive). Based upon such evidence, the court ruled that a jury must determine if the defendant is liable for the child’s injuries in spite of his “not my dog” defense.

The parents’ negligence per se allegations were based upon three ordinances that prohibited vicious dogs from being kept in Tulsa and expanded the definition of "owner" beyond the scope of Oklahoma's dog bite statute (4 O.S. §42.1). Title 2, Ch. 1: §§2(d), (1)(d) and §(1)(b) (1973). Section 2(d) defines what constitutes an offense:

It shall be an offense under the terms of this Chapter for any owner within the corporate limits of the City of Tulsa to: … Harbor, keep or have possession of any vicious animal.

Sections (1)(d) and (1)(b) define "owner" and "vicious animal" for purposes of 2(d). An owner within §(1)(d) is not limited to individuals with a legal right to possession and includes anyone who cares for, has custody of, keeps or maintains any dog, cat or domestic animal. A vicious animal under §(1)(b) is defined broadly and encompasses more than vicious propensities attributable to a specific animal or breed known to be naturally fierce or to attack humans/animals without provocation. Specifically, (1)(b) defined vicious animal as "one not only of a disposition to attack every person or animal it may meet, but it includes as well a natural fierceness or disposition to mischief, as might occasionally lead it to attack human beings, or animals, without provocation."

According to Hampton, "When a city ordinance is violated, the elements of actionable negligence are: (1) the injury must have been caused by the violation; (2) the injury must be of a type intended to be prevented by the ordinance; and (3) the injured party must be one of the class meant to be protected by the ordinance.”[3] All three elements were satisfied, and the ruling on the first element (causation) was determined by disputed material facts concerning: 1) disrepair of the fence separating the parties’ backyards, 2) ownership of the fence, 3) whether the manner in which the dog that attacked the child was maintained/chained led it be aggressive, 4) the defendant’s knowledge of the child’s previous entries into his backyard and 5) whether the defendant impliedly consented to the child entering his property. Thus, the court held that a jury had to resolve the parents' negligence per se allegations as well.

In regard to 4 O.S. §42.1, the court analyzed four elements that must be proven: 1) ownership of the subject dog, 2) lack of provocation, 3) injury caused by the subject dog and 4) the victim being lawfully present where the attack took place.[4] In most cases, appellate courts applied a narrow standard to who qualifies as an "owner" under 4 O.S. §42.1. However, the Hampton court applied Tulsa Ordinance (1)(d) cumulatively with 4 O.S. §42.1 because it expanded “owner” to include persons who harbor or exercise control over a dog, and such expansion is consistent with the city of Tulsa's legitimate concern of protecting its residents from injuries or death from vicious dogs. As a result, the defendant/property owner was deemed to be an owner of the pit bull that attacked the young boy.[5]

MUNICIPAL ORDINANCES EXPANDING LIABILITY

The definition of "owner" is also broader than typical in other cities’ ordinances, presumably to achieve the same protection of residents recognized in Hampton. The cities with such ordinances include Altus (4-1), Ardmore (5-1), Bixby (5-6A-1), Broken Bow (6-1), Del City (4-4), Edmond (7.08.050(c)), El Reno (135-1), Enid (5-7-1), Lawton (5-1-101(34)), Moore (4-101), Mustang (14-1), Oklahoma City (8-5(19) and 8-131(f)), Spencer (6-1) and Yukon (14-1). To avoid problems, property owners should periodically monitor the ordinances for cities in which they have properties, since new or amended ordinances may be issued.

Other cities have implemented different ordinances to prevent dangerous and menacing dogs from being kept on any property within city limits. The city of Oklahoma City enacted ordinances that prohibit all property owners from allowing any dangerous or menacing animals to be harbored, possessed or maintained on their properties. Ordinance 8-132 provides: “(a) It shall be unlawful for any person to own, harbor, possess, or maintain a dangerous animal, except as authorized by order of the Municipal Court. No person who has an ownership interest in real property shall permit another person to harbor, possess, or maintain on that property any dangerous animal, except as authorized by order of the Municipal Court.”[6] Ordinance 8-133 declares: “(a) It shall be unlawful for any person to own, harbor, possess or maintain a menacing animal, except as authorized by order of the Municipal Court. No person who has an ownership interest in real property shall permit another person to harbor, possess, or maintain on that property any menacing animal, except as authorized by order of the Municipal Court.”[7] Ordinance 8-131 defines dangerous and menacing as follows:

(c) Dangerous animal means any animal: (1) that bites or inflicts an injury upon a person or domestic animal; or (2) that is owned, trained, used, or harbored, primarily or in part, for the purpose of animal fighting.

(e) Menacing animal means an animal that growls, snarls, takes an aggressive stance, or shows its teeth toward a domestic animal or person, or that destroys property (e.g., a fence) in an attempt to get to a person or domestic animal.

It is easy to understand how these ordinances should dramatically reduce the number of violent attacks on children and adults throughout Oklahoma City, but only if property owners know and comply with them. Thus, any attorneys who represent property owners, whether they rent such properties to tenants or not, should notify their clients immediately. Failure to comply with the mandates of these ordinances can cost lives and result in substantial liability for injuries caused by dogs or other animals that fall within their definitions of “dangerous” or “menacing.”

In a recent case, Terrell v. Chapman, et al., the owner of a residential development within Oklahoma City limits was held liable for severe injuries suffered by a 6-year-old girl in an unprovoked attack by a rottweiler allowed to live in a duplex in the development.[8] At trial, the injured child’s mother asserted negligence and negligence per se claims against the property owner based upon its disregard of complaints about aggressive acts by the rottweiler and violations of §§8-131 and 8-132 (previous versions). Before the attack, the property owner received multiple emails reporting the dog had shown aggressive behavior over several months. Some of these emails included photographs of fence damage caused by the dog, along with complaints that it was being kept outside in extreme weather. Yet, the property owner never took any action to remove the rottweiler or its owners from the property, which it was empowered to do under its lease with the tenants who owned that dog. Instead, it proceeded with a “not my dog” posture that proved unwise and contrary to the above-referenced ordinances. The jury awarded over $5 million against the property owner for the child’s injuries and prominent scarring that will be visible on her face for the rest of her life.

RECENT APPELLATE DECISION

A recent opinion from the Oklahoma Court of Civil Appeals (Wishon v. Hammond) also involved allegations about inadequate fencing and other negligent acts against a property owner for injuries caused by a tenant’s dog.^[9] In Wishon, a pedestrian was attacked as he walked past a property where the owners allowed a tenant to keep a pit bull/mastiff mix. One of the factors referenced in this opinion is the defendants’ prohibiting all the tenants at different properties from keeping any animals pursuant to written lease provisions. The court also recognized that the defendants had notice from animal control officers that the subject dog was known to leave their property due to a lack of fencing. The defendants did purchase an enclosure for the dog, but they were notified that it was not kept in the enclosure or restrained with a chain that would have kept it on their property. Additionally, the enclosure was not big enough to keep the dog controlled on a long-term basis, and it was placed in an area that made it easy for the dog to escape. Based upon all the evidence, the court ruled that a jury would decide the pedestrian’s general negligence allegations. The Wishon court did not deem the defendants to be “owners” for purposes of strict liability under 4 O.S. §42.1, as the Hampton court decided, but it is an important example of an appellate court rejecting a property owner’s “not my dog” defense.

PRACTICAL APPLICATION

First, all property owners should use common sense if they receive any complaint or concern about a potentially aggressive, vicious, dangerous or menacing animal being kept at any of their properties. Each situation may be unique, but there is no excuse for allowing a tenant or anyone else to keep a dog or another animal that has demonstrated any potentially harmful behavior or disposition. Property owners should also evaluate the specific conditions at each property, particularly whether adequate fencing is in place to prevent dogs from escaping. In several of the cases discussed above, proper fencing might have prevented the attacks. When fencing is not feasible or sufficient, owners must consider alternative measures, such as using secure chains or enclosures to ensure dogs are safely restrained.

Second, all property owners should stay current on all ordinances that apply where their properties are located. Special attention should be devoted to ordinances governing how property owners must prevent dangerous, vicious or menacing animals from residing on their properties. If there is a chance such an animal is present, immediate action must be taken to remove the animal with or without its owners. Many leases include provisions making such removals or evictions possible. Property owners should be aware that conduct as simple as a dog destroying part of a fence to reach another animal or person is sufficient to render a property owner liable under ordinances in effect throughout Oklahoma City, and ignoring such situations is at their own peril. Once an owner has notice that a dog may be aggressive, dangerous, vicious or menacing (as defined by applicable ordinances or otherwise), the owner must take prompt action that is appropriate for whatever circumstances exist.

Third, property owners can take preemptive action through written lease provisions limiting the size of any animal permitted on the premises, ensuring that any dog residing with a tenant would not be large enough to inflict serious injuries to a person or another animal. However, such provisions are only effective if owners evaluate dogs that tenants seek to have on their properties. It may be time-consuming to approve such dogs, but most leases include the right to do so, and the stakes of allowing tenants to bring any dogs they desire far outweigh the burden of preventing potentially aggressive, dangerous, vicious or menacing dogs from residing at their properties. Property owners can also ban dogs of specific breeds through written leases, and it is difficult to justify allowing the types of dogs that are repeatedly involved in a majority of lethal attacks, regardless of whether many such dogs will ever attack anyone.

Last, property owners should seek information about dogs or animals that may be brought to their properties from tenants’ prior landlords. This task can be added to routine verifications that occur, and it may prevent children or others from enduring  brutal attacks that injure and scar them for life.

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ABOUT THE AUTHOR

Keith F. Givens of Mansell & Engel has represented clients in personal injury and insurance cases for more than 30 years. In addition to litigating such matters, he has presented wide-ranging topics at numerous seminars and written articles for various publications. He also played a significant role in the creation of Oklahoma's donor registry and served as a charter member of Oklahoma's Advisory Council on Organ Donation. Mr. Givens was lead counsel in Terrell v. Chapman, et al. (discussed above).

 

 

 

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ENDNOTES

[1] Bishop By and Through Childers v. Carroll, 1994 OK CIV APP 37, 872 P.2d 407; Eastin v. Aggarwal, 2009 OK CIV APP 67, 218 P.3d 523; Taylor v. Glenn, 2010 OK CIV APP 20, 231 P.3d 765.

[2] Hampton By and Through Hampton v. Hammons, 1987 OK 77, ¶12, 743 P.2d 1053, 1055-56.

[3] Hampton at 1056.

[4] Hampton at 1058.

[5] Id.

[6] Oklahoma City Code of Ordinances, 8-132. Emphasis added.

[7] Oklahoma City Code of Ordinances, 8-133. Emphasis added.

[8] Terrell v. Chapman, et al., CJ-20-1625 (Oklahoma County).

[9] Wishon v. Hammond, 2023 OK CIV APP 36, 538 P.3d 1197.